Home Box Office made waves over the past year with its launch of HBO Max and the decision to release new Warner Bros. films directly to the service. The streaming offering is so popular that it hit its two-year subscriber goal over a year ahead of schedule. It may not all be smooth sailing, though, as the service now faces a claim of trademark infringement over the HBO Max name.
Trademark Infringement Claim Against HBO Max
HBO was launched nearly 50 years ago, and they’ve no doubt established distinctiveness in the minds of consumers. With aTrademark Opposition filed on February 2, though, a company is claiming the name “HBO Max” infringes upon their rights. In a filing to the U.S. Patent and Trademark Office, Traxxas, L.P. states that registration of the name would create a likelihood of confusion.
The trademark dispute stems from a family of trademarks used by Traxxas. The trademarks include MAXX, T-MAXX, X-MAXX, E-MAXX and others. While these spellings obviously differ from HBO Max, this doesn’t mean that infringement hasn’t occurred. The plaintiff feels that the similarity will result in a likelihood of confusion.
Of course, companies with similar names may be able to simultaneously exist. The real issue arises if their products, services or even avenues of trade share similarities. What does Traxxas provide to consumers? “Radio-controlled model vehicles and parts therefore.” This raises the question of how a remote control car company could possibly be confused with an online streaming service.
Likelihood of Expansion with HBO Max
HBO Max applied for and received trademark protection back in 2017. There was no opposition from Traxxas at that time. When Home Box Office applied for the same trademark in International Class 28, though, the plaintiff felt that confusion may arise. This class includes toys and sporting goods, so it’s obvious that Home Box Office hopes to expand into new areas.
The filing for HBO Max includes:
- Board games.
- Card games.
- Playing Cards.
- Puzzle games.
- Action figures.
- Collectible modeled plastic and resin toy figurines.
- Arcade-type electronic video games.
- Coin-operated video games.
- Slot machines.
Some may argue that – even with the new trademark application falling under a class reserved for toys – confusion is an unlikely outcome. HBO Max is a famous brand identifier, and a slot machine or card game featuring the word mark wouldn’t likely be confused with a T-MAXX radio-controlled model car. In the filing from Traxxas, though, the following point is made:
“The identification for Applicant’s Goods under the HBO MAX Mark is without any restriction as to channels of trade or classes of purchasers. The identification for Applicant’s Goods is therefore presumed to encompass and travel in the same channels of trade to the same class of purchasers as those of Opposer’s Goods…”
It’s difficult to envision a situation where HBO Max and the family of Traxxas trademarks won’t travel in the same channels of trade. The question is whether this is enough to support a claim of trademark infringement.
What Happens Next
Regardless of whether the opposer’s notice of opposition is a winning claim, Home Box Office must provide an answer to the filing. They’ve been given until March 14 to file a response, and discovery in the case will start soon thereafter.
Home Box Office has never been afraid to take on a trademark fight – even famously calling out Donald Trump on Twitter for his misuse of a slogan from Game of Thrones. The company has no doubt invested significant capital into their future plans for HBO Max, so they’re unlikely to go away quietely.
It is very possible that the two parties could come to a settlement, but with the resources of what has become a major name in streaming, HBO Max might opt for litigation before retreating an inch. We’ll keep you updated!
